Doubts about the act on GMO-free products
From 1 January 2020 we could see new labels on the market on food and feed: “GMO-free” and “produced without GMOs.” But considering the requirements producers must meet before using such labelling, it may take longer for these products to reach the market.
The new symbol is an oval with a white ear of maize on a green background with the relevant inscription. The new labelling was introduced by the Act on Labelling of Products Produced Without the Use of Genetically Modified Organisms as GMO-Free of 13 June 2019, which enters into force on 1 January 2020.
We reported on these plans earlier on our portal. The new act establishes the conditions for stating that a product or its ingredients are not genetically modified. Food products can be designated as such only if their level of genetic modification, including GMOs, is less than 0.1%, and in the case of animal feeds less than 0.9%. Such remnants are permissible as “adventitious or technically unavoidable.”
The Polish act uses the terms “genetic modification” or “GMO,” applied in EU legislation, but in trade other terms are also encountered. Thus in Germany the term Gentechnik is used, and in the US “bioengineering” and “bioengineered” are official terms, designed to win greater acceptance by consumers for products that have undergone genetic modification.
The lack of genetic modifications in food products of animal or plant origin, or feeds, has to be proved by tests at accredited labs in accordance with ISO standard 17025, where the accreditation covers analysis for the presence and identification of the contents of genetic modifications. The duty to commission such tests rests on the entities producing, processing, packaging or storing GMO-free products and intending to market them.
One of the aims of the testing is to analyse the threat of occurrence of genetic modifications in the product. Depending on the results of the analysis, the frequency of sampling for tests will be defined in order to show that products labelled as “GMO-free” meet the conditions of the act. The act requires lab testing not only of products (or their ingredients) with genetically modified equivalents entered in the EU register, but also ingredients that have for example been imported from countries with more liberal rules for genetic modifications or lacking such rules. The duty to perform frequent lab tests (e.g. for each supply of raw materials for further production) and the related cost may prove to be a major item in the economic calculation of the potential benefits from the competitive advantage of marketing a product labelled as GMO-free.
Producers and suppliers of foods and feeds who previously labelled their products as GMO-free in any manner, but whose products do not meet the new statutory conditions, must sell off their inventories by the end of 2021. From an economic perspective it is understandable that the sell-off of such products would be permissible, but the two-year period seems too long. Assuming that products meeting the statutory requirements begin to appear on the market in about the middle of 2020 (if not earlier), consumers will be disoriented for at least a year and a half. They might regard the existing labelling of a product as GMO-free, and the new label with the maize logo, as equally valid. This approach also raises serious doubts from the perspective of fair competition regulations.
The rules for GMO-free products will be even more of a patchwork because under the principle of the free flow of goods, the act formalising the labelling of products with a GMO-free logo will not apply to foods or feeds from other member states of the EU, the EFTA or the EEA, or Turkey. Such products may be labelled in a manner permitted under the regulations of the given country.
While the act was generally drafted in compliance with legislative principles, the cross-reference in 15 articles to 12 EU regulations, eight Polish acts, and one EU directive must generate concern. These cross-references make the act hard to understand and require familiarity with numerous hard-to-interpret regulations. The act may thus prove difficult to apply, particularly for small and medium-sized Polish producers of agri-food items relying on domestic unmodified feeds. After all, the act was intended to give them a competitive advantage over products, mainly imported, produced with GMOs.
The poor wording of the act is a direct effect of the overregulation and excessive complexity of the EU food and feed law. This is a well-known problem that is often raised in the literature. Unfortunately, the REFIT (Regulatory Fitness and Performance) regime launched by the European Commission several years ago has not generated the desired results.
Dr Ewa Butkiewicz, attorney-at-law, Life Science and Regulatory practice, Wardyński & Partners
